Citation Nr: 0028535
Decision Date: 10/30/00 Archive Date: 11/03/00
DOCKET NO. 99-15 296 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an effective earlier than November 24, 1996
for the award of service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael F. Bradican, Counsel
INTRODUCTION
The veteran served on active duty from October 1960 to
October 1982. He died on April [redacted], 1993. The appellant
is his widow.
This case comes to the Board of Veterans' Appeals (Board)
from a July 1998 rating decision from the New Orleans,
Louisiana Regional Office (RO) which granted the appellant's
claim for service connection for the cause of the veteran's
death and awarded her DIC, effective from one year prior to
her November 24, 1997 claim. The appellant appeals to the
Board for an effective date earlier than November 24, 1996
for the award of DIC.
FINDINGS OF FACT
1. The veteran, who served in Vietnam, died on April [redacted],
1993 as the result of squamous cell carcinoma of the lung.
2. The appellant's claim for DIC was received on May 11,
1993; she alleged that her husband's death was due to a
service-connected illness.
3. In July 1993, the RO denied service connection for the
cause of the veteran's death; the appellant did not perfect
an appeal with regard to that decision.
4. Pursuant to the Agent Orange Act of 1991, VA regulations
were amended in 1994 to allow service connection for veterans
who were presumed to have been exposed to herbicide agents in
Vietnam and developed one of the specified diseases listed
thereunder, including lung cancer.
5. In an application received by the RO on November 24,
1997, the appellant requested DIC, alleging that the cause of
the veteran's death (lung cancer) was due to Agent Orange
exposure during his military service.
6. In a July 1998 rating decision, the RO granted service
connection for the cause of the veteran's death, effective
from November 24, 1996, based on the fatal lung cancer being
service connected as due to Agent Orange exposure in service.
7. The appellant qualifies as a member of the class in
Nehmer v. United States Veterans Administration, 712 F. Supp.
1404 (N.D. Cal. 1989), having filed a claim on May 11, 1993,
the denial of which was voided by the court in Nehmer, and
the appellant's claim is subject to the Nehmer Stipulation
approved in 1991 (and addressed by further court order in
1999) which mandates that the effective date for her award of
DIC is the date of the original claim for DIC, May 11, 1993.
CONCLUSION OF LAW
An earlier effective date of May 11, 1993 for an award of DIC
is warranted. Nehmer v. United States Veterans
Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v.
United States Veterans Administration, C.A. No. C-86- 6160
(TEH) (N.D. Cal. May 20, 1991) (final stipulation and order);
Nehmer v. United States Veterans Administration, 32 F. Supp.
2d 1175 (N.D. Cal. 1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran served on active duty in the Air Force from
October 1960 to October 1982. His service personnel records
indicate he served in Vietnam from July 1969 to July 1970.
The veteran's death certificate reveals that he died on April
[redacted], 1993. The immediate cause of death was squamous cell
carcinoma of the lung. On May 11, 1993 the appellant
submitted an application for DIC, claiming that the cause of
the veteran's death was due to a service-connected illness.
At the veteran's death, service connection was established
for arteriosclerotic heart disease, peptic ulcer disease,
scar of the left knee, bilateral hearing loss, and fracture
of the left elbow.
In July 1993, the RO denied service connection for the cause
of the veteran's death, stating that there was no evidence of
carcinoma of the lung in service or in the presumptive period
following service and that the evidence did not show that the
veteran's service-connected disabilities caused or
contributed to his death.
In May 1989, arising out of a class action suit filed in
1987, a U.S. District Court decision invalidated the
regulations which VA used to evaluate Agent Orange cases.
[Nehmer v. United States Veterans Administration, 712 F.
Supp. 1404 (N.D. Cal. 1989).] The decision effectively
voided all VA claims denials on or after September 25, 1985
based on the invalidated regulations. In 1991, Congress
enacted the Agent Orange Act of 1991. Subsequently, the
court in a May 1991 Order approved a Final Stipulation in the
Nehmer lawsuit, which regarded readjudication of claims based
on Agent Orange exposure and the effective dates of awards.
[Nehmer v. United States Veterans Admin., C.A. No. C-86- 6160
(TEH) (N. D. Cal. May 20, 1991) (final stipulation and
order).] In February and June 1994, new regulations were
implemented by VA under the Agent Orange Act of 1991,
creating a presumption of service connection for respiratory
cancers, among others, on a presumptive basis as due to
herbicide exposure.
In June 2, 1995, VA's Office of General Counsel issued a
precedent opinion interpreting provisions of the Nehmer
Stipulation and Order. [VAOPGCPREC 15-95.] It was held, in
pertinent part, that a claim does not fall under the Nehmer
Stipulation and Order where either the claimant did not
specifically allege in an original DIC claim that the
veteran's death resulted from a disease which may have been
caused by herbicide exposure during military service in
Vietnam or the original claim was not denied under the former
invalidated 38 C.F.R. § 3.311a(d) (1986).
On November 24, 1997, the appellant submitted an application
to reopen her claim for DIC, alleging that the cause of the
veteran's death was due to Agent Orange exposure during his
military service. In a July 1998 rating decision, the RO
granted service connection for the cause of the veteran's
death and awarded DIC, effective from November 24, 1996. The
RO granted service connection on the basis that the veteran's
fatal lung cancer was a presumptive Agent Orange disability.
In an August 1998 award letter, the RO notified the appellant
that DIC was payable effective from December 1, 1996. In her
November 1998 notice of disagreement with the RO's
determination, the appellant stated that she had originally
applied for service-connected death benefits in 1993.
In a May 1999 SOC, the RO denied retroactive payments of
service-connected benefits on the basis that Nehmer was
inapplicable because the appellant did not make a specific
allegation that herbicide exposure was a factor in the
veteran's disability and her original claim was not denied
under the former 38 C.F.R. § 3.311a(d). The RO stated that
as Nehmer was not for application, the effective date for the
appellant's award of DIC was determined by 38 C.F.R. §
3.114(a), which allowed for an effective date one year prior
to the receipt of the appellant's request for reconsideration
of her claim for service connection for the cause of the
veteran's death.
The appellant contends that an effective date of April [redacted],
1993, the date of the veteran's death, is warranted for the
grant of service connection for the cause of the veteran's
death and award of DIC. She originally filed a claim for
service connection for the cause of the veteran's death on
May 11, 1993, and that claim was denied in a July 1993 RO
decision. (The appellant's claim did not specify a causal
connection to Agent Orange, and the claim was denied without
reference to Agent Orange.) Subsequently, the laws and
regulations pertaining to service connection for disabilities
due to exposure to Agent Orange were changed, and on November
24, 1997 she filed an application to "reopen" her claim for
service connection for the cause of the veteran's death on
the basis of the new laws and regulations. In a July 1998 RO
decision, the claim was granted pursuant to the new
regulations, and the appellant was awarded DIC, effective
from November 24, 1996 (with payment pursuant to the award
effective from December 1, 1996).
Prior to the Agent Orange Act of 1991, 38 C.F.R. § 3.311a
(since removed from VA regulations) governed decisions on
claims for compensation based on exposure to herbicides
(Agent Orange). On May 3, 1989, a U.S. District Court ruled
in the Nehmer class action suit that denials under §
3.311a(d) were invalid because VA had erroneously applied too
restrictive a standard in determining what conditions were
associated with dioxin exposure. The previously denied
claims were voided by the court. The court stated that the
correct standard was not proof of a causal relationship, but
rather a significant statistical association. The Veterans
Benefits Administration (VBA) then imposed a moratorium on
denials under § 3.311a(d).
The court approved a Final Stipulation in the Nehmer lawsuit
in a May 17, 1991, order. Paragraph 3 of the Stipulation and
Order required that when VA issued valid regulations in
accordance with the Agent Orange Act of 1991 establishing a
presumption of service connection for diseases determined to
be associated with herbicide exposure, VA would readjudicate
claims based on these diseases in which previous denials were
voided by the court's May 3, 1989, order, and adjudicate
similar claims that were filed subsequent to the order.
Paragraph 5 of the Stipulation and Order provided that, in
readjudicating claims where a prior decision (under 38 CFR §
3.311a(d)) was voided by the court's order, an award of
compensation or DIC under the new regulations would be
effective retroactive to the date the claim giving rise to
the voided decision was filed or the date of the qualifying
disability or death, whichever is later. Paragraph 5 also
provided that, for claims filed after May 3, 1989 (e.g.
pending claims that were stayed due to the moratorium on
decisions under § 3.311a(d)), the effective date of an award
would be the date the claim was filed or the date of the
qualifying disability or death, whichever is later.
Regulations were published in February and June of 1994
creating presumptions of service connection for certain
diseases based on information from the NAS report and
removing § 3.311a from the regulations. At the same time, VA
lifted the moratorium on denials.
It had been VA's interpretation that essentially the only
claims subject to the retroactive-effective-date provisions
of the Nehmer Stipulation and Order were those in which
either the claimant had actually raised the issue of exposure
to herbicides (Agent Orange); or VA had specifically denied a
claim under the invalidated regulation, 38 CFR § 3.311a(d).
This interpretation of what constitutes a claim subject to
the retroactive-effective-date provisions of the Nehmer
Stipulation and Order was found in M21-1, part VI,
7.20d(3)(a), and derived its authority from a GC precedent
opinion, VAOPGCPREC 15-95 of June 2, 1995.
In June, 1998, attorneys for the Nehmer class petitioned the
court to rule that VA's interpretation and instructions were
not in compliance with the Stipulation and Order. They cited
the cases of two widows whose reopened claims were allowed
under rules published according to the requirements of the
Agent Orange Act of 1991, but who were not paid benefits
retroactive to the dates of their original claims because
they had not specifically raised the issue of Agent Orange
exposure and VA had not relied on 38 CFR § 3.311a(d) when
denying the earlier claims.
On February 11, 1999, the District Court ruled that VA did
not properly implement the settlement in the Nehmer lawsuit.
The Court stated that VA's method of identifying decisions
voided by the May 3, 1989, order was too formalistic. The
Court explained that its intention had been to void decisions
made under the invalidated regulation where the disease upon
which that voided decision was based was subsequently found
to be associated with herbicide exposure. The court rejected
VA's argument that the only denials invalidated were those
where the claimants had specifically raised the issue of
Agent Orange exposure or where VA had relied on 38 CFR §
3.311a(d) when denying the claims.
In view of the Court's February 11 ruling, VA could no longer
follow the interpretation in M21-1, part VI, 7.20d(3)(a) and
VAOPGCPREC 15-95 in determining what constitutes a claim that
is subject to the retroactive-effective-date provisions of
the Nehmer Stipulation and Order. Accordingly, claims are
now subject to the retroactive-effective-date provisions of
the Nehmer Order where:
a) a claimant specifically raised the issue of herbicide
(Agent Orange)
exposure;
b) VA specifically referred to the invalidated regulation,
38 § CFR 3.311a(d) in denying service connection for
disability or cause of death; or
c) a claimant sought service connection for a disability or
cause of death that VA subsequently determines is associated
with herbicide exposure, regardless of whether the claimant
or VA had raised the issue of exposure or an earlier denial
specifically referred to the invalidated regulation.
After reviewing the record, the Board finds that the
appellant qualifies as a member of the class in Nehmer ( the
cause of death was a herbicide related disease, lung cancer)
and that her claim is subject to the retroactive effective
date provisions of the Nehmer Stipulation and Order which
mandate that the effective date is the date the of the
original claim for DIC, May 11, 1993. Paragraph 5 of the
Nehmer Stipulation provides that an award of compensation or
DIC under the new regulations would be effective retroactive
to the date the claim giving rise to the voided decision was
filed or the date of the qualifying disability or death,
whichever is later.
ORDER
An earlier effective date of May 11, 1993 for the award of
DIC is granted.
M. W. GREENSTREET
Veterans Law Judge
Board of Veterans' Appeals